WOMEN AND CHILDREN - ROLE OF COURTS

by
Honble Mr. Just!e ".S#t$#s%#&'
Ju()e' Su*re&e Court o+ In(# on ,-..-.,./- #t
T#&l N#(u St#te Ju(!#l A!#(e&y (urn) t$e S*e!#l "ro)r#&&e
+or Dstr!t Ju()es #n( C$e+ Ju(!#l M#)str#tes on 0Wo&en #n( C$l(ren1
A very Good Morning and warm greetings to each one of you assembled here
today. At the outset, I must applaud the enduring efforts of the Tamil Nadu State udicial
Academy to organi!e at fre"uent intervals conferences li#e these on topics of
contemporary relevance, which no doubt benefit the legal fraternity at large. After all, it is
only with constant thin#ing and deliberations, we can ensure that statutes do not remain
mere statutes, but evolve into a legal system responsive and sensitive enough to meet
the challenges of present times with an eye on future.
It is with this very idea that the State udicial Academy is organi!ing today$s
session. It is heartening to #now that the highest body in the state for training %udges has
underta#en such an endeavor to sensiti!e %udges who form the foundation of the %udicial
pyramid in our country.
The topic of my address is &'omen and (hildren - )ole of (ourts*. To begin with,
we all agree that in a democratic country li#e ours, the courts, as the guardian of rights,
play a crucial role in enforcing the rights of the people as enshrined in the (onstitution
and elaborated in various acts. 'ithout enforcement, rights remain mere paper
promises. As %udges, we are often called upon to perform a +twin role$ of balancing
conflicting rights of the persons or groups who approach the courts and simultaneously
restore faith of the public in rule of law.
In the last ,- years of independence, if there is one concern, which has been the
sub%ect of much debate and has constantly encompassed the %udicial mind is the rights
of women and children in India. (ounted together, they form more than the ma%ority
population and yet their voices and choices continue to be in minority. Their social and
economic disadvantages further disable them to see# legal remedies. It is in this
bac#ground that %udiciary has e.hibited e.tra precaution in deciding civil and criminal
cases involving women and children. (ourts have given a purposive interpretation to the
legislations to undo age old ine"ualities and e.tend the benefits favorably.
In spite of timely interference by legislature and %udiciary, the e"ual status of
women and children has not translated into actual reality. The vulnerable status of
women and child is the only element, which has not witnessed radical change in this
globali!ed and liberali!ed world. /owever, the eternal truth remains that no country can
see the full swing of development both economic and social until their women and
children prosper.
)ecent statistics of rape, child abuse, se.ual harassment, child marriages and
female foeticide depict the grim reality, which prevails today. 0iolence and its various
manifestations point to the fact that discrimination against women and children is not
mere local issue. In this light, the %udicial wing of the State has to play a vital role in
elimination of such discrimination in particular and for the upholding of women and
children rights in general.
India is a diverse country with its multicultural, multi1ethnic and multi1religious
population where the protection of human rights become sine "ua non for peaceful
e.istence. It is indeed impossible to give an inclusive definition of /uman )ights owing
to its vast nature, however, the legislators have defined /uman )ights as &the rights
relating to life, liberty, e"uality and dignity of the individual guaranteed by the
(onstitution or embodied in the International (ovenants and enforceable by courts in
India* under the /uman )ights Act, 2334. The women and children are entitled to the
same human rights as individuals. This was envisaged by our (onstitution ma#ers and
the same has to be enforced by the %udiciary.
It is the duty of the udges to read between the lines and enforce these rights for
the betterment of the society. The Ape. court and /igh courts are armed with writ
%urisdiction to chec# the violation of fundamental rights. The 5rocedural laws delineate
various powers and functions of the district %udges at every stage both pre1trial, during
trial and post1trial. I am confident that you are aware of these provisions and the same
re"uire no repetition. /owever, I wish to remind you that these powers and functions
bestowed upon you are to be e.ercised as public trust in full compliance with the
(onstitutional mandates of fair and speedy trial. As 6istrict udges and Magistrates you
have a greater calling while discharging statutory functions. /ence, it is a moral
imperative as well as a duty upon the district %udges to reduce disparity in society.
CONSTITUTIONAL COMMITMENTS IN SAFE2UARDIN2 WOMEN AND CHILDREN
The framers of the Indian (onstitution too# note of the adverse and discriminatory
position of women and children in society and too# special care to ensure that the State
must ta#e positive steps to give them e"ual status. The framers have bestowed two
#inds of rights based on role of State i.e. firstly, positive rights which obliges the State to
actively underta#e welfare measures and secondly, negative which prohibits
discrimination. Together, 7undamental rights and 6irective principles of State policies
are an amalgam of these two #inds of rights.
"ost%e R)$ts
Art!le /34 &The State shall not deny to any person e"uality before the law or the
e"ual protection of the laws within the territory of India.*
Art!le /56-7 enables the State to ma#e special provisions for children.
Art!le ,/A #n( 35 provide for free and compulsory education to child below 28
years of age.
Art!le -84 &The State shall, in particular, direct its policy towards securing
9a: that the citi!ens, men and women e"ually, have the right to an ade"uate
means of livelihood;
9d: that there is e"ual pay for e"ual wor# for both men and women;
9e: that the health and strength of wor#ers, men and women, and the tender age
of children are not abused and that citi!ens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
9f: that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are
protected against e.ploitation and against moral and material abandonment.
Art!le 3,4 &The State shall ma#e provision for securing %ust and humane
conditions of wor# and for maternity relief *.
Art!le 39 stipulates that it is the duty of the state to raise the level of nutrition
and health of the children.
Ne)#t%e r)$ts
Art!le /56/74 &The State shall not discriminate against any citi!en on grounds
only of religion, race, caste, se., place of birth or any of them*.
Art!le /:6,74 & No citi!en shall, on grounds only of religion, race, caste, se.,
descent, place of birth, residence or any of them, be ineligible for, or discriminated
against in respect of, any employment or office under the State.*
Art!le ,- ; ,3 specifically prohibits traffic#ing, forced labour and child labour.
The 6irective 5rinciples under Art!le -8 6e7 ; 6+7 bars all forms of e.ploitation
pre%udicial to any aspects of the children$s welfare.
Though the concept of rights of the child was not very lucid at the time of ma#ing
of the (onstitution, it still envisioned children as the assets of the country who need
protection to develop into a complete being capable of steering the nation to
development. These provisions only highlight the fact that our (onstitution ma#ers were
fully aware of their responsibility towards women and children.
Apart from constitutional guarantees there is a plethora of legislative enactments
and policies that have been passed to give effect to the constitutional mandate.
This has been further supplemented and implemented by %udicial precedents with
passage of time. Ne.t, I wish to highlight the %urisprudence relating to gender %ustice and
then subse"uently on child rights.
WOMEN EM"OWERMENT THROU2H JUDICIAL "ROCESS
<pliftment and advancement of women has been at the centre of constitutional
mechanism. 0arious provisions of the (onstitution as earlier stated and the amendments
providing 44.4 percent reservation for women in local self governance aim at achieving
the two ideals of the 5reamble i.e. e"uality of status and e"uality of opportunity.
'hile there are several schemes and programmes relating to education and
health of women in rural and urban areas indicative of the continuous efforts on part of
e.ecutive to ensure e"uality, the "uestion to be as#ed is what has been and what is the
role of courts in achieving gender e"uality.
It is my view that the %udiciary has attempted to venture into the critical role of a
social reformer by upholding the rights of women. It continues to play a progressive,
dynamic, creative and proactive role for social, economic and cultural transformation.
The role of the %udiciary can be further discerned from a number of progressive decisions
rendered over the decades. 7or an organi!ed reference, I have clubbed the cases under
two different heads vi!. ="ual opportunities and ="ual Status.
E<UAL O""ORTUNITIES
A. En(n) Ds!r&n#ton n "ubl! E&*loy&ent #n( More Re*resent#ton t$rou)$
Reser%#ton.
The difficult tas# before courts is to harmoni!e gender e"uality with gender
differentiation in order to ensure gender %ustice in its truest sense. This re"uires careful
balancing and must depend on facts and circumstances of each case. I may refer to two
case laws to illustrate this approach that courts in my view must adopt.
In C.B. Muthamma, IFS vs. Union of India 923>3: 8 S(( ?,@, the validity of the
Indian 7oreign Service 9(onduct and 6iscipline: )ules, 23,2 was challenged which
forced women diplomats to obtain a written permission from the government before
marriage could be solemni!ed and left it to government$s satisfaction to terminate
services marriage. Although the petition was dismissed as the government amended the
particular rules, the case brought to light the discrimination faced by women even in high
government posts. 'riting the %udgment, ustice Arishna Iyer observedB
..We do not mean to universalize or dogmatise that men and women are
equal in all occupation and all situations and do not exclude the need to
pragmatism where the requirements of particular employment, the
sensitivities of sex or the peculiarities of societal sectors or the handicaps of
either sex may compel selectivity. But save where the differentiation is
demonstrated, the rule of equality must govern.
In Government of Andhra Pradesh vs. PB Vijay Kumar 9233-: 8 S(( -?@, the
court upheld the government$s notification reserving 4@C seats for women in public
services and also the preferential treatment in posts better suited for women. Giving
wide meaning to the term +special provision$ under Article 2-94: to include both
reservation and affirmative action, the (ourt observed thatB
Maing special provisions for women in respect of employment or posts
under the !tate is an integral part of "rticle #$%&'. (his power conferred under
"rticle #$%&', is not whittled down in any manner )y "rticle #*.
=. Se>u#l H#r#ss&ent
The role of court in laying down guidelines for public and private employers in
order to curb se.ual harassment is well ac#nowledged. The fact that these guidelines
have been in operation for 2- years and only in ?@2?, the Se.ual /arassment of 'omen
at 'or#place 95revention, 5rohibition, and )edressal: Act, ?@2? was enacted which
points to dynamic role of courts in enforcing e"ual opportunity to women at wor#place in
compliance with international convention against discrimination.
In Vishaa and others vs. State of !ajasthan, 9233>: , S(( ?82, the Supreme
(ourt held that se.ual harassment of wor#ing women at her place of employment
amounts to violation of rights of gender e"uality and right to life and liberty enshrined in
Articles 28, 2- and ?2 of the Indian (onstitution. The (ourt further observed that the
meaning and content of the fundamental rights guaranteed in the (onstitution of India
are of sufficient amplitude to encompass all the facts of gender e"uality including
prevention of se.ual harassment or abuse. 7urther, the Supreme (ourt, in this case said
that, as there is no law relating to se.ual harassment in India, therefore, the provisions of
International (onventions and norms are to be ta#en into consideration, and charted
certain guidelines to be observed at all wor# places or other institutions until a legislation
is enacted for the purpose.
In A""are# $%"ort Promotion Coun&i# vs. A.K. Cho"ra, 92333: 2 S(( >-3,
again the Supreme (ourt reiterated 0isha#a ruling and said that the attempts of se.ual
harassment of female results in violation of fundamental rights to gender e"uality
enshrined under Articles 28 and ?2 of the (onstitution. The (ourt further stated that
international instrument such as the convention on the =limination of All 7orms of
6iscrimination against 'omen and the Dei%ing 6eclaration casts obligations on the State
to ta#e appropriate measures to prevent gender ine"ualities and protect the honour and
dignity of women.
)ecently in Medha Kot'a# vs. Union of India' 9?@24: 2 S(( ?3> a three udge
Dench of the Supreme (ourt heard a 5IE raising the grievance that the guidelines in
+ishaa case are not followed in substance and spirit. The court too# note of the fact that
there is still no proper mechanism in place to address the complaints of se.ual
harassment of the women lawyers in Dar Associations, lady doctors and nurses in the
medical clinics and nursing homes, women architects wor#ing in the offices of the
engineers and architects and issued necessary directions on the same.
C. "l)$t o+ Wo&en Wor?ers - +ro& e@u#lty to e&*oAer&ent
The plight of women wor#ers has been brought to the attention of courts in
several cases. They form one of the most neglected sections of the society as mostly
employed in the unorgani!ed sector. A very important and useful provision of women$s
welfare and well1being is incorporated under Article 8? of the (onstitution. It imposes an
obligation upon the State to ma#e provisions for securing %ust and humane conditions of
wor# and for maternity relief. Some of the legislations which promoted the ob%ectives of
this Article are the 'or#men+s (ompensation Act, 23?4, the =mployees State Insurance
Act, 238F, the Minimum 'ages Act, 238F, the Maternity Denefit Act, 23,2, the 5ayment
of Donus Act, 23,-, and the li#e.
In the case of (attatraya Moresh'ar Pan)arar vs. State of Bom*ay AI) 23-?
S( 2F2, the Supreme (ourt held that legal provisions to give special maternity relief to
women wor#ers under Article 8? of the (onstitution do not infringe Article 2-92:. In the
case of Muni&i"a# Cor"oration of (e#hi vs. Fema#e +orers ,Muster !o##7 9?@@@: 4
S(( ??8 the Supreme (ourt held that the benefits under the Maternity Denefits Act,
23,2 e.tend to employees of the Municipal (orporation who are casual wor#ers or
wor#ers employed on daily wages basis. This applies to the claim of non1 regulari!ed
female wor#ers for maternity relief.
Dy giving favorable interpretation such as e.tending maternity benefits to all
women whether employed on regular, casual, daily wages or on muster roll basis, it can
be said that court have moved a step ahead from e"uality to empowerment.
It is noteworthy to mention the case of Asso&iate Bans -ffi&ers Asso&iation
vs. State Ban of India

9233F: 2 S(( 8?F, wherein the Ape. (ourt held that women
wor#ers are in no way inferior to their male counterparts and hence there should be no
discrimination on the ground of se. against women. In Air India Ca*in Cre'
Asso&iation vs. .eshas'inee Mer&hant #n( Ors. 9?@@4: , S(( ?>>, the Supreme
(ourt has held that the twin Articles 2- and 2, prohibit a discriminatory treatment but not
preferential or special treatment of women, which is a positive measure in their favour.
E<UAL STATUS
The Supreme (ourt delivered a very significant %udgment when it ordered in
Ve#amuri Venata Sir"rasad vs. Kothuri Venatesh'ar#u, 9?@@@: ? S(( 243 that
e"uality of status was integrated to the concept of basic structure of the (onstitution and
was an important dimension of gender %ustice.
In .usuf A/i/ vs. State of Bom*ay

' AI) 23-8 S( 4?2 the validity of Section
83> of I5( 9adultery: was challenged under Articles 28 and 2- 92: of the (onstitution.
Section 83> of the I5( only punishes a man for adultery and e.empts the women from
punishment though she may be e"ually guilty as an abettor and this section was held by
the Supreme (ourt to be valid since the classification was not based on the ground of
se. alone, thus relying on the mandate of Article 2-94:. =ven Section 4-8 of I5( 9assault
or criminal force to woman with intent to outrage her modesty: is not invalid because it
protects the modesty only of women and Section 2?- is valid although it obliges the
husband to maintain his wife but not vice versa. Similarly, Section 28 of the /indu
Succession Act, 23-, converting the women$s limited ownership of property into full
ownership has been found in pursuance of Article 2-94:.
Another landmar# %udgement was given by the Ape. (ourt in Gita 0ariharan vs.
!eserve Ban of India, 92333: ? S(( ??F. In this case, the (ourt interpreted Section ,
of the /indu Minority and Guardianship Act, 23-, and held that the mother could act as
the natural guardian of the minor during the fatherGs lifetime if the father was not in
charge of the affairs of the minor.
In Arun Kumar A)ra'a# vs. 1ationa# Insuran&e Co. 2td 9?@2@: 3 S(( ?2F, a
significant "uestion which arose for consideration was the criteria for determination of
the compensation payable to the dependents of a woman who dies in a road accident
and who does not have regular source of income. The court, while raising the amount of
compensation has rightly observed the followingB
,n ,ndia, the -ourts have recognized that the contri)ution made )y the wife
to the house is invalua)le and cannot )e computed in terms of money. (he
gratuitous services rendered )y wife with true love and affection to the
children and her hus)and and managing the household affairs cannot )e
equated with the services rendered )y others. .owever, for the purpose of
award of compensation to the dependents, some pecuniary estimate has to
)e made of the services of housewife/mother. ,n that context, the term
0services1 is required to )e given a )road meaning and must )e construed )y
taing into account the loss of personal care and attention given )y the
deceased to her children as a mother and to her hus)and as a wife. (hey are
entitled to adequate compensation in lieu of the loss of gratuitous services
rendered )y the deceased. (he amount paya)le to the dependants cannot )e
diminished on the ground that some close relation lie a grandmother may
volunteer to render some of the services to the family which the deceased
was giving earlier.
To reiterate, it is the duty of the courts and tribunals to factor these considerations
in assessing compensation for housewives who are victims of road accidents and fi. %ust
compensation. Thus, courts have a role in giving such an interpretation to beneficial and
welfare legislation which serves to ameliorate the status and conditions of women in our
society.
Apart from these cases, there are many other cases in which the Ape. (ourt had
given the %udgments, helping to give a dignified status to the women. The %udiciary,
definitely, filled the vacuum created owing to inade"uacies in laws.
ARTICLE ,/- DI2NITB OF WOMAN AS AN INDICIDUAL
Article ?2 contains provisions for protection of life and personal liberty of persons.
In the case of State of Maharashtra vs. Madhuar 1arayan Mandiar, 92332: 2 S((
->, it was held that even a woman of easy virtue is entitled to privacy and no one can
invade her privacy. This article has also been invo#ed for the upliftment of and dignified
life for the prostitutes.
The right to life enshrined in Article ?2 of the (onstitution also includes the right to
live with human dignity and rape violates this right of women was held in Shri
Bodhisatt'a Gautam vs. Su*hra Chara*orty' 9233,: 2 S(( 83@D C$#r&#n,
!ai#'ay Board v. Mrs. Chandrima (as' 9?@@@: ?S(( 8,-.
Article ?2 has to be read together with Article -2 A (lause 9e: as added by the
7orty1Second Amendment which gives a mandate and imposes a duty on Indian citi!ens
&to renounce practices derogatory to the dignity of women*. The duties under Article -21
A are obligatory on citi!ens, but it should be invo#ed by the (ourts while deciding cases
and also should be observed by the State while ma#ing statues and e.ecuting laws.
FAST AND FAIR SETTLEMENT OF MATRIMONIAL DIS"UTES TO =RIN2 RELIEF
TO WOMEN AND CHILDREN
In the last decade or so, there has been an enormous upshot in matrimonial
disputes which are often a hybrid of civil and criminal proceedings. This leads to further
delays as parties approach multiple courts with their claims and counter claims. The rigor
of legal procedures is disruptive of normal family life and has a direct bearing on future of
many women and children litigants. Thus, only fast and fair settlement of matrimonial
disputes can bring %ust relief to them.
In a recent %udgment pronounced on 2-
th
March this year, in 3itendra
!a)huvanshi vs. Ba*ita !a)huvanshi, (r. Appeal NoB 88>H?@24, the Supreme (ourt
upheld the inherent power of /igh (ourts to "uash criminal proceedings in non1
compoundable offences under Section 83FA and 8@, provided a mutual settlement is
arrived between matrimonial parties. The court further observed thatB
(he institution of marriage occupies an important place and it has an
important role to play in the society. (herefore, every effort should )e made in
the interest of the individuals in order to ena)le them to settle down in life and
live peacefully. ,f the parties ponder over their defaults and terminate their
disputes amica)ly )y mutual agreement instead of fighting it out in a court of
law, in order to do complete 2ustice in the matrimonial matters, the courts
should )e less hesitant in exercising its extraordinary 2urisdiction.
I believe that there are higher chances of successful mediation in matrimonial
disputes when done at initial stage itself. /ere, the role of district courts and subordinate
%udiciary in encouraging amicable settlement assumes primary importance and is very
much within the statutory mandate of Section F3 of the (ivil 5rocedure (ode. The Ape.
(ourt is conscious that the subordinate courts are in the best position to help parties
arrive at a meaningful settlement favorable to both. Aeeping this in mind, the Supreme
(ourt while allowing transfer petitions in matrimonial matters has been issuing directions
to district family courts to ma#e all endeavors for early settlement and disposal.
ROLE OF MA2ISTRATES IN DOMESTIC CIOLENCE CASES4
6omestic violence is a serious infringement of human rights of women, which
needs to be eradicated completely. 5reviously, when a woman is sub%ected to cruelty by
her husband or his relatives, her only remedy was under section 83FA I5(. /owever,
with the enactment of the 5rotection of 'omen 7rom 6omestic 0iolence Act, ?@@-
9hereinafter as 3the "ct4', the civil remedy to women in such offences was recogni!ed. In
precise, this act was enacted to effectively protect rights of women who are victims of
violence within the family and to provide e.peditious civil remedy to them. The
Magistrates role becomes very vital for reaping the full benefits of this act.
Magistrates should be pro1active and inform the applicant of her legal options,
including securing maintenance, custody and divorce. All efforts should be made to deal
with applications for protection orders promptly. =ach case of physical abuse, se.ual
abuse, verbal and emotional abuse must be treated seriously, fairly, e.peditiously and
with sensitivity. Section 28 of the Act also entails the magistrate at any stage of the
proceedings to direct the respondent or the aggrieved person, either singly or %ointly,
undergo counseling.
7urther, under section 39?: of the Act vests control and supervision with the
concerned Magistrate to oversee the various duties which are performed by the
5rotection Ifficer. The Magistrates must ma#e all endeavours to dispose of applications
for relief within a period of ,@ days from the date of first hearing. Giving such speedy
relief is the mandate of Section 2?9-: and also in concurrence with the larger ob%ective of
ending violence against women which is occurring within four walls of the house.
RECENT CRIMINAL LAW 6AMENDMENT7 ACT ,./-
The (riminal Eaw 9Amendment: Act ?@24 has been recently passed by
5arliament on 23
th
March amending I5(, (r5( and the Indian =vidence Act to counter
crimes against women. (ertain acts of violence li#e Acid attac#s, voyeurism, stal#ing
have been made punishable. 7urther, rigorous imprisonment of minimum ?@ years for
gang rape has been prescribed.
The amended law places additional duties on magistrates to ensure fair and
speedy disposal of crimes against women especially in heinous offences li#e rape. It
may be appropriate to highlight some of these amended provisions.
Newly amended Section 2,89-A: e.pects the udicial Magistrate to record the
statement of the person accused in offences punishable under Section 4-8, 4>,
and -@3 as soon as the commission of the offence is brought to the notice of the
police.
In Section ?>4 (r5(, a new proviso allows the (ourt to ta#e appropriate
measures to ensure that a woman below the age of 2F years is not confronted by
the accused during cross1e.amination.
Section 4@3 92: now mandates completion of in"uiry or trial for rape within a
period of ? months from date of filing of chargesheet as compared to earlier
proviso which contemplated relevant date from commencement of e.amination of
witnesses.
Ne.t, I wish to focus on child rights %urisprudence.
ROLE OF COURTS IN U"HOLDIN2 CHILD RI2HTS
The courts have aimed at e"ual rights for women and children, it is always their
welfare and interest which is of paramount consideration. (ourts are often called upon to
e.ercise their 5arens 5atriae 9Eatin term for &5arent of the Nation*: %urisdiction and
decide cases involving children with utmost care and caution applying human touch to
the problem.
=EST INTEREST OF CHILD
To fulfill this role of courts effectively, %udges should be not only conversant but
also give due weightage to certain rights of children fundamental to their well1being.
These can be summari!ed as followsB
The &ivi# ri)hts of &hi#dren include the right to a name and nationality, birth
registration, protection from torture and maltreatment, special rules governing the
circumstances and conditions under which children may be deprived of their
liberty or separated from their parents, etc.
The e&onomi& ri)hts of &hi#dren include the right to benefit from social security,
the right to a standard of living ade"uate to ensure proper development, and
protection from e.ploitation at wor#.
The so&ia# ri)hts of &hi#dren include the right to the highest attainable standard
of health and access to medical services, the right to special care for
handicapped children, protection from se.ual e.ploitation and abduction and the
regulation of adoption.
The &u#tura# ri)hts of &hi#dren include the right to education, access to
appropriate information, recreation and leisure.
There is an urgent need for recogni!ing another important inalienable right of the
children, which is the ER)$t to *etton. In precise, children must have the right to be
heard by the courts in deciding issues, which affect them directly. Already a start has
been made in this regard, as in most child custody cases; interaction of the %udge with
the child to gauge hisHher preferences has become standard procedure. I hope that this
good practice is adhered to in all district courts of the State.
CHILD "ROTECTION
There is no issue concerning children that is not potentially in some way related
to child protection. Iften, protection concerns lie hidden beneath the surface of issues
that seem unrelated. 7or e.ample, the concern of lac# of sanitation in schools is
intertwined with safety of girl students who may be vulnerable to se.ual abuse. 7urther, it
acts as a barrier in coming to school adversely affecting their right to education. Thus
child protection lin#s closely to all aspects of children$s well being and is very much a
concern for courts today. (hild protection means protection from abuse and violence.
The need of the hour is for the courts to award stringent punishment in offences
against children. In Chi#d#ine India Foundation vs. A#an 3ohn +aters and -rs. 9?@22:
, S(( ?,2, complaints of physical and se.ual abuse of children #ept in shelter homes in
Mumbai were before the Supreme (ourt. (onvicting the accused who deserved no
leniency the court observed as followsB
-hildren are the greatest gift to humanity. (he sexual a)use of children is one of
the most heinous crimes. ,t is an appalling violation of their trust, an ugly )reach
of our commitment to protect the innocent. (here are special safeguards in the
-onstitution that apply specifically to children. (he -onstitution has envisaged a
happy and healthy childhood for children which is free from a)use and
exploitation.
India has witnessed an increase both in crimes committed by children and those
committed against them. (hildren who are li#ely to come in contact with the %udicial
system may be children in conflict with law or %uveniles and children who are victims or
witness in the case.
In Shee#a Barse vs. Chi#dren Aid So&iety and -rs. 923F>: 4 S(( -@' a
petition was moved for the plight of children in observation and homes the court issued
several directions with regard to trial of cases against %uveniles and establishment of
special courts presided over by special cadre magistrates trained suitably for dealing
with cases against children. 'e now have in place the uvenile ustice 9(are J
5rotection of (hildren: Act as amended in ?@2@, which lays down the special procedure
to be followed in cases of children in conflict with law. The challenge before courts is to
balance goals of deterrence and reformation. Doth of which are e.tremely relevant when
children come in conflict with the law.
The moot point is that courts have to be sensitive to the fact that children are not
one homogenous category. All children are not similarly placed. 7urther, there
vulnerabilities differ in type and e.tent. (hildren in difficult circumstances include
orphans, street children, migrant children, children affected by manmade and natural
disasters, drug addicts, refugee children, slum and migrant children and children of
commercial se. wor#ers.
Ta#ing note of this fact, in !( U"adhyay vs State of Andhra Pradesh and -rs.
AI) ?@@, S( 238,, the court issued directions for the development of children with their
mothers who are in %ail either as under trial prisoners or convicts. 'hile observing that
the best interest of the child is the primary consideration in our (onstitution, it was held
that such children shall not be treated as an under trial or convict while in %ail with his or
her mother. 7urther, they are entitled to food, shelter, medical care, clothing, education
and recreational facilities as a matter of right.
6eciding cases involving children becomes even more challenging as courts are
pitted against economic and social malaise, which can$t be undone by %udiciary in one
go. An illustration of this is the issue of child labour in light of e.treme poverty prevailing
in the country. The courts are not immune to this reality and have admitted public
interest litigations on behalf of children e.ploited as bonded labourers in stone "uarries,
employed in firewor# factories, construction industry and circuses. The landmar# case of
MC Mehta vs. State of 4ami# 1adu 9233,: , S(( >-, is reflective of court$s pragmatic
approach in dealing with issue of child labour. 'hile upholding children$s right to
education, the court also suggested measures such as provision for alternative
employment to parents.
Time and again, the courts have dwelt on the obligations of the state and society
towards children and recalled India$s commitment by acceding to the <N (onvention on
)ights of (hild. Thus, %udges must adopt pragmatic approach while dealing with cases
involving child rights and remedy the gaps in access to %ustice for them.
ENSURE CHILD FRIENDLB COURTS
'hether children come into contact with the law as victims, witnesses, offenders
or complainants, it is e"ually important that they are met with a system that understands
and respects both their rights and their uni"ue vulnerability. There have been some
progressive developments in the last few years, which have provided children the right to
be heard in court. 5erhaps the most significant among them is the in1camera trial for
se.ually abused children. 5rolonged and delayed trials #eep children and their aggrieved
families away from see#ing any legal redressal at all and they give up mid1way. To
counter this, courts must adopt child friendly procedures and easy access to child victims
and child witnesses.
Guidelines have been laid down in Sashi vs Union of India 9?@@8: - S(( -2F
with regards to holding trial in cases of child rape or abuse such as screen to be placed
between victim and accused, sufficient brea#s to be given to child during testimony etc.
6istrict udges and magistrates must give their special attention that these directives are
strictly followed both in letter and spirit.
7urther, it is important to create an enabling environment wherein the children are
able to e.press themselves. This clearly calls for new and additional infrastructure and
change in the e.isting infrastructure in all courts dealing with children. It also calls for a
change in the functioning of the courts. The newly enacted The 5rotection of (hildren
from Se.ual Iffences Act, ?@2? provides for the establishment of Special (ourts for trial
of offences under the Act, #eeping the best interest of the child as the paramount
importance at every stage of the %udicial process. Ei#ewise, the Act incorporates child
friendly procedures for reporting, recording of evidence, investigation and trial of
offences. The Act is a progressive step and must be implemented in its full spirit.
(hildren need to be informed about their rights under the laws and in the legal
system. This can be achieved only by propagation of awareness among the children.
The 6istrict Eegal Aid (ommittees must ensure that legal aid and advice reaches to
children who see# legal representation.
MEASURES NECESSARB TO IM"ROCE COURTS ROLE IN "ROCIDIN2 S"EEDB
JUSTICE TO WOMEN AND CHILDREN4 A REMINDER
1. 5rioriti!e cases where women or children are party by early listing and hearing
without unnecessary ad%ournments.
2. =nsure that cases of rape, molestation, #idnapping, eve1teasing, murder for
dowry, cruelty by husbandHrelatives, traffic#ing of girls are referred to 7ast Trac#
courts set up for the purpose.
3. Although there is no outer time limit for completion of trials, %udges should try to
achieve the mandate of Section 4@392: of (r5( thatB
in every inquiry or trial the proceedings shall )e held as e%"editious#y
as possi)le, and in particular, when the examination of witnesses has
once )egun, the same shall )e continued from day to day until all the
witnesses in attendance have )een examined, unless the court finds
the ad2ournment of the same )eyond the following day to )e necessary
for reasons to )e recorded.
4. Timely and proper recording of dying declaration of the victim by the %udicial
magistrate is crucial for final conviction and officers must be ade"uately trained in
this regard.
5. Trial in rape cases must be in1camera as per Section 4?>9?: of (r5(. The
provision see#s to protect the identity of the victim and must be adhered to.
/owever, under the proviso, the presiding %udge may allow support person to
accompany the victim on written application. Such a re"uest should be allowed if
favorable to recording victim$s testimony.
:. (reate an enabling environment for child victimsHwitnesses inside the courtroom.
(hildren should not be forced to have contact with alleged perpetrators and,
where appropriate, audio1visual or closed1circuit television technology should be
made available to facilitate the process. (hildren should be as#ed straightforward
"uestions in language that they understand.
7. Eegal aid and advice should be made available round the cloc#. 6istrict Eegal Aid
(ommittees should ta#e the lead in the same and ta#e special measures to reach
out to women and children.
8. Setting up of all women courts and child friendly courts is a positive development.
/owever, gender1sensitive training must be necessary part of training for %udicial
officers and other court staff.
9. Irgani!ation of Eo# Adalats to encourage settlement in matrimonial disputes
should be adhered too.
Than# KouL